Adoption and Children Bill

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The Chairman: Order. The hon. Gentleman is making a rather long intervention.

Ms Winterton: I am very aware that exceptions were made when peerages were created if there was no male heir. As the hon. Gentleman said, some ancient baronies by writ were created by remainders. Those include Willoughby de Eresby, Dacre, and Darcy de Knayth. The ancient Scottish earldoms of Mar and Sutherland and other peerages were also created by remainders which allowed females to inherit in default of male heirs, and the hon. Gentleman may already have referred to the Scottish earldoms of Loudoun and Dysart and the English baronies of Strange and Lucas of Crudwell. Females can, therefore, inherit some peerages.

However, that goes slightly wide of the issue. The amendment would put adopted sons—I say that because we are dealing with sons in this case—in a more advantageous position than sons born to unmarried parents. A peerage cannot currently be inherited by a son who is born when his parents are unmarried. Even if they then marry and he is legitimated—that is apparently the correct word—he still cannot inherit.

Mr. Shaw: Born or conceived when his parents were unmarried?

Ms Winterton: Born—no, both. I believe that the act—conception—must take place within the marriage.

Mr. Llwyd: On a point of order, Mr. Hood. What does the Parliamentary Secretary mean by ''act''?

The Chairman: Order. I ask the Parliamentary Secretary to carry on.

Ms Winterton: I may be wrong on those points and need to correct myself. I would not like to mislead the Committee on such an important matter.

Tim Loughton: This might be one occasion on which a flow chart would be rather useful. Perhaps the Lord Chancellor's Department would care to provide one.

Ms Winterton: That was extremely helpful. However, I stand corrected: the inheritance is allowed if the child is born into the marriage.

Mr. Djanogly: If we accept the amendment, illegitimacy could be remedied by adoption.

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Ms Winterton: That may be possible, but it shows that the amendments would have a broad impact, which would create some difficulties. Peerages usually pass to the eldest son. I presume that the intention of the amendment is to ensure that the adopted son would inherit if he were older than any son born to the adopters. However, that could deprive the eldest natural son of what some might regard as his legitimate expectation.

Mr. Bellingham: I mentioned the fourth Marquess of Aberdeen, who adopted a son in 1950. He went on to have natural children, and his eldest natural son is allowed to call himself the Earl of Haddo and will inherit. The Parliamentary Secretary spoke of depriving natural children, but we should be talking about the rights of adopted children and equality between adopted and natural children. The Government have a backward-looking attitude. We should be doing all we can to ensure that children adopted by loving couples, married or not, in every level of society are provided for.

Ms Winterton: I chose my words carefully when I pointed out that the amendment could be regarded as depriving natural children of what some would regard as a legitimate expectation. I hope that that phrasing emphasises my opinion that the proposals would have wide implications.

Mr. Bellingham: The Parliamentary Secretary talks about legitimate expectation, but I do not propose to make the provision retrospective. If the amendment were accepted, a natural son born after a child had been adopted would have no such expectation once the Bill became law. Legitimate expectations would not be relevant—they would, effect, go out of the window.

Ms Winterton: If a peer's son were born and an older child subsequently adopted, the natural child might legitimately expect to inherit but be disinherited by the adoption of another child. That is hypothetical, and I would have to see how such a case stacked up against the amendment. The hon. Gentleman's suggestion could have many repercussions for adopted boys, who are the main subject of this discussion.

A child born as a result of artificial insemination in which a third-party donor is involved cannot inherit.

Mr. Bellingham: That is interesting. If a childless couple goes through IVF and the woman becomes pregnant, that is obviously a private matter for all concerned, and as long as the woman gets pregnant and has a healthy child, everything ends happily. Whether the outcome is achieved using donor sperm or artificial insemination seems irrelevant, because the child will, to all intents and purposes, be a natural child with all the rights of ordinary children. Is that not the case?

Ms Winterton: There are much wider issues at stake. If a peer's wife undergoes artificial insemination involving a third-party donor, the child born as a result cannot inherit. However, I think I am right in saying that if the sperm is the peer's but the egg is donated by a third-party female, the peerage can be passed on because the male bloodline is preserved. There are inconsistencies in the approach taken, and the hon. Gentleman might be right in saying that there will be difficulties.

Tim Loughton: What if a peer of the realm donated sperm to a woman to whom he was not married? The Parliamentary Secretary said earlier that offspring would have to be legitimate if the title were to be passed on. Would the offspring resulting from such a donation be legitimated for the purposes of heredity if the peer donating the sperm later married the third-party woman?

Ms Winterton: I think that if the peer who had donated the sperm married the woman before the child was born, the child would inherit the title, but if they did not marry and the child was not born into a married state, it would not be able to inherit. The principle would apply because the child would be considered illegitimate, and all the attendant difficulties of that status would come to bear.

Mr. Shaw: Given my hon. Friend's explanations, is it surprising that some hereditary families do not have the most stable existence?

Ms Winterton: I do not know how much artificial insemination occurs among peers—it is clear that I have not been sufficiently well briefed on the subject.

There are one or two difficulties with the amendments. Outwith their wider implications, from a purely legal, drafting perspective they do not achieve the intended effect. It appears that they would override any instrument granting the peerage and/or providing the inheritance, rather than establish the status of the adopted child for the purposes of such instruments. As I said, although I can understand the motivation behind the amendments, I must ask the Committee to reject them.

Mr. Bellingham: I am grateful to the Parliamentary Secretary for her explanation. The debate has been interesting and constructive and has introduced many issues that we never dreamed would be discussed.

The Parliamentary Secretary referred to donor sperm and in vitro fertilisation. It is a shame that my hon. Friend the Member for Canterbury is not here, as he and his wife have been through the process and he has spoken movingly about it. He knows the emotional stress and strain that couples undergo, as well as the total unfairness that they suffer because it is so difficult to get IVF treatment on the national health service. However, surely no differentiation as to how a child is born is made in respect of children born as a result of IVF, be it through intra-cytoplasmic sperm injection—ICSI—or other forms? Apart from the record kept by the clinic, no legal record will exist to show that a child was born as a result of donor sperm as opposed to the mother's egg being fertilised in a test tube by the father's sperm. Professor Craft or Professor Lord Winston, for example, might keep a record, but the children resulting from such treatment would not have an extra digit attached to their national insurance number. We do not live in a Stalinist state. One hopes that the child will be born into a happy, loving family. I am surprised by the Minister's remarks.

Ms Winterton: I was trying to explain that that is how the law stands at the moment. Under the laws of inheritance, certain types of peerage pass down the male bloodline. I do not know whether the hon. Gentleman was a Member of Parliament at the time, but the Human Fertilisation and Embryology Act 1990 re-emphasised that inheritance could pass down only through the male's sperm.

Mr. Bellingham: I am grateful to the Parliamentary Secretary for putting me right on that point. I am sure that all members of the Committee know of families who have undergone IVF treatment, but they do not know what sort of treatment those families had. I submit that families with an inherited title may not know the nature of a child's conception because the treatment is a matter kept private between the couple and they do not broadcast the fact. Although the hospital and social services may be aware of what is happening, other people may not.

Ms Winterton: Perhaps I can clarify a point. The hon. Gentleman said that the child might be born through IVF and asked whether that would become known. The current position is that an inheritance cannot be passed on unless it can be proved that the husband is the father.

Mr. Bellingham: The Parliamentary Secretary seems to be saying that very few people would know about the childless couple's IVF treatment, which is a private matter. The stress and emotion for all involved is enormous, although it is of course hoped that in due course a child will be born into a loving family. The issue would be relevant only if someone contested the title—if perhaps 30, 40 or 50 or so years later a court case was brought. However, for all intents and purposes—and I am sure that my hon. Friend the Member for Canterbury will endorse this—such treatment is not something that people discuss except with their most intimate friends. In many happy cases, a child is born as a result of IVF, so it is a pity that many childless couples do not have access to fertility treatment on the NHS; perhaps the Minister of State, Department of Health, should take that point on board. The amendment has brought into sharp focus the concept of blood offspring, and how vague and dated it has become.

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